1843.

AGASSIZ and Wife

v.

PALMER.

a view to the arrest of the defendant. The 1 & 2 Vict. c. 110, clearly contemplated arrests in such actions only as were commenced by writ of summons in the ordinary course, and had no reference to proceedings on a judgment by sci. fa. The 5th section of that act provided, that the Judge's order for the arrest of the defendant, "may be made, and the defendant arrested in pursuance thereof, at any time after the commencement of such action, and before final judgment shall have been obtained thereon." A sci. fa. was not such a commencement of an action as was thereby meant. Taking the sci. fa. to be a proceeding in the original action, the objection also applied, for it then became a proceeding after judgment. The distinction was taken in Tidd's Practice, p. 1096, 9th ed., and it was there laid down that a scire facias was not a new action, but a continuation only of the original suit. The additional circumstance of the introduction of the name of the female plaintiff's husband to this record was immaterial, because it had no effect in altering the identity of the proceeding. Bac. Abr. tit. "Scire Facias," 6, shewed that before the 1 & 2 Vict. c. 110, there was no power to hold to bail in scire facias.

Cur. adv. vult.

TINDAL, C. J., on the 6th of May gave judgment. We wished to look a little into the cases, before we decided upon the question which has been raised on this rule, and having done so, we are of opinion that the learned Judge had no power to grant a capias under the circumstances which have been stated. The nature and object of the writ of scire facias is, to call upon the defendant to shew cause why execution should not issue against him, and the old process was by summons and distringas, but no process ever issued to take the person of the defendant. If, therefore, the proceedings by scire facias are to be looked upon as the commencement of a new action, no capias can be granted, as the second and third sections

of the 1 & 2 Vict. c. 110, refer only to actions where the defendant was liable to arrest, at the time of the passing of that statute; if, on the other hand, a scire facias is to be treated as the continuance of an old action, then the right to issue the capias is excluded by the terms of the fifth section. The rule, therefore, must be absolute, but the defendant must undertake not to bring an action.

Rule accordingly.

1843.

AGASSIZ and Wife

v.

PALMER.

Burgess v. Langley.

SHEE, Serjt., moved for a rule, calling upon the defend- The Court will

ant to shew cause why there should not be a new trial of this
action, on the ground of the misconduct of the jury.
was an action brought to recover the sum of 571. 16s. 3d.,

It

not set aside a verdict upon

the ground of

the misconduct

of a jury, upon

affidavit of a

after the deli

the price of a phaeton supplied to the defendant by the statement made plaintiff, and the only question at the trial was, whether by one juror in the presence the sale took place with or without a stipulation for twelve of his fellows in open Court months' credit? The carriage was supplied on the 29th of immediately August, 1842; the action was commenced on the 17th of November in the same year, and the trial was had before Tindal, C. J., on the 18th of February, at the sittings in London, after last Hilary Term. The present motion was made on the affidavit of the plaintiff's attorney, who stated that the case being closed, the jury retired to consider their verdict; that the learned Judge quitted the Court, leaving

gave

very of the verdict, and not denied by any of them;

which was that

the jury being equally divided their names

in opinion,

had been put

into a hat, and

the name of

drawn forth by

his vote had been transfer

of those from

the Associate to take the verdict, and that the deponent also one being left the Court for a short time; that upon the depo- the foreman, nent's return, the jury had come into Court, and then their verdict for the defendant; that thereupon and imme- red to the side diately after the giving of the said verdict, and just as the whom he payment to the jury of their fees, by the officer of the differed in Court was concluded, and before the jury had retired from that the verdict the Court, one of the jurors stood up in the box, and, in mined by the the presence of the others, stated, that the said jury had majority thus

opinion, and

had been deter

created.

1843.

BURGESS

v.

LANGLEY.

been equally divided in opinion upon the case: that six of
them were for the plaintiff, and six for the defendant; but
that none of them would give way; that thereupon the
names of all the jurors were put into a hat, and it was re-
solved that one name should be drawn by the foreman, and
that the person whose name was so drawn, should vote with
the persons to whom he had been previously opposed to
in opinion, and that the verdict should be given in favour of
the opinion of the majority thus created, and it was also
agreed, that it should be recommended that each party
should pay his own costs. It was sworn, that this state-
ment was made in open Court, and in the presence and
hearing of the other jurymen, and was not denied by any
of them. It was now urged that this was such misconduct
on the part of the jury, that the Court would order a new
trial. The rule was distinctly laid down, that if the jury
determined their verdict by lot, the verdict would be set
aside. Chit. Arch. p. 287. [Cresswell, J.-Is it not also
clear that the statement of a juror upon such a subject can-
not be received? Erskine, J.-In Straker v. Graham (a),
it was held, that an affidavit of an attorney, stating facts to
have been related by one of the jury respecting their improper
conduct in finding a verdict, cannot be received in order
to impugn the verdict.] Here, the statement was made by
a juror in open Court, and was not contradicted. This
case, therefore, was distinguishable from that referred to.
[Cresswell, J.-For a long time it has been decided, that
the affidavit of a juror will not be taken in such a case (b);
if that be so, how can we receive a mere statement made
under such circumstances]. The statement here must be
taken to be admitted to be true.

TINDAL, C. J.-I cannot distinguish this case from that of Straker v. Graham. There, the affidavit of the plaintiff's

(a) Ante, vol. 7, p. 223, O. S.; S. C. 4 M. & W. 721; Vide also Harvey v. Hewitt, ante, vol. 8, p.

598, O. S.

(b) Vide Lord Abinger, C. B., in Straker v. Graham.

attorney was produced, to shew that one of the jury had told him that the jury had decided upon their verdict by tossing up, and Lord Abinger, C. B., in giving judgment, said, I am clearly of opinion that we can take no notice of this affidavit. If I had been aware of it, I should never have consented to its being placed upon the files of the Court. It would be improper to receive the affidavit of a juryman, and, certainly, everything that would go to reject that, would equally apply to the exclusion of this, which is merely hearsay evidence of his statement." Mr. Baron Parke said, "where the jury have unanimously concurred in a verdict delivered in open Court, I think it would be extremely dangerous to admit an affidavit of this sort to overthrow it; therefore I wish distinctly to say, that I cannot attend for a moment to the affidavit, but that I reject it entirely." Mr. Baron Alderson expressed himself in even stronger terms; he said, "it is entirely against policy to allow a juryman to make an affidavit of anything that passes in agreeing to a verdict. This affidavit being hearsay, must necessarily stand lower than that of a juryman. I entirely concur in the rejection of this affidavit, and I think that this important rule should be strictly adhered to whenever the question is in any way raised." Upon general principle, I think this rule should be refused, but under the particular circumstances of this case, I will see the Associate, and learn from him whether anything took place in Court to induce the Court to alter its determination.

Upon a subsequent day the Court refused the rule.

Rule refused.

1843.

BURGESS

v.

LANGLEY.

1843.

THARPE and Wife v. STALLWOOD and Another.

tis is maintain

able by an ad

ministrator for

Trespass, de THIS was an action of trespass, and the declaration alleged that the defendant, on the 29th July, 1842, took and carried away certain goods of the plaintiff, Sarah, who was administratrix of Letitia Evans, deceased; profert of the letters of administration granted to the plaintiff, Sarah, after the death of the said Letitia Evans, to wit, on the 29th of July, 1842, by William, Lord Archbishop of Canterbury.

a trespass committed upon the goods of the intestate, after his death, and before letters of administration granted.

Therefore,

in lodgings, on the 29th of June, and on the 28th of July, T., her sister, took possession of her property, but whilst she was removing

it, it was seized

of rent alleged

E.'s landlord,

Plea, not guilty, by statute. At the trial before Tindal, where E. died C. J., at the sittings after Hilary Term, 1843, it appeared that Letitia Evans died on the 29th of June, 1842, in the house of a person named Cole, residing in Calthorpe Street, Gray's Inn Lane, and that at the time of her death she possessed some furniture, which she left in the apartments which she had occupied. The plaintiff, Sarah, was sister to the deceased; and, on the 28th of July, she went by S., in respect to obtain possession of the goods, and a portion of them had to be due from been placed in a waggon for the purpose of being removed and on the 29th by her, when the defendant, Stallwood, who was Cole's landlord, and his assistant came up and seized them in respect of certain rent alleged to be due from Cole. The goods were carried away, and were only returned on payment of 157. 10s., the amount of rent demanded. The letters of administration were put in evidence, and they bore date the 29th of July, 1842, one day after the commission of the alleged trespass. The defendant failed to refused to grant prove that any rent was due from Cole to Stallwood; for upon their tendering parol evidence of that fact, it appeared that there was a subsisting contract in writing between the parties, which the defendants were unprepared to produce, and the evidence tendered was rejected. The jury found

of July administration was granted to T., it was held,

that T. was entitled to maintain trespass for such seizure, &c.,

no rent being proved to be due to S.

The Court

a new trial, on

the ground of surprise, upon an affidavit, stating that

the defendants had failed in proving rent

to be due from C. to S., by reason of the non-production of a written agreement, in the possession of the defendant S., but of the existence of which the defendants' attorney was ignorant until the trial.